The alien wife of a citizen who had served honorably in the
armed forces of the United States during World War II sought
admission to the United States. On the basis of confidential
information, the disclosure of which, in his judgment, would
endanger the public security, the Attorney General denied a
hearing, found that her admission would be prejudicial to the
interests of the United States, and ordered her excluded.
Held: this action was authorized by the Act of June 21,
1941, 22 U.S.C. § 223, and the proclamations and regulations issued
thereunder, notwithstanding the War Brides Act of December 28,
1945, 8 U.S.C. § 252
et seq. Pp. 539-547.
(a) The admission of aliens to this country is not a right, but
a privilege, which is granted only upon such terms as the United
States prescribes. P.
338 U. S.
542.
(b) The Act of June 21, 1941, did not unconstitutionally
delegate legislative power to prescribe the conditions under which
aliens should be excluded. Pp.
338 U. S.
542-543.
(c) It is not within the province of any court, unless expressly
authorized by law, to review the determination of the political
branch of Government to exclude a given alien.
Page 338 U. S. 538
(d) Any procedure authorized by Congress for the exclusion of
aliens is due process, so far as an alien denied entry is
concerned. P.
338 U. S.
544.
(e) The regulations governing the entry of aliens into the
United States during the national emergency proclaimed May 27,
1941, which were prescribed by the Secretary of State and the
Attorney General pursuant to Presidential Proclamation 2523, were
"reasonable" within the meaning of the Act of June 21, 1941. P.
338 U. S.
544.
(f) Presidential Proclamation 2523 authorized the Attorney
General, as well as the Secretary of State, to order the exclusion
of aliens. P.
338 U. S.
544.
(g) Petitioner, an alien, had no vested right of entry which
could be the subject of a prohibition against retroactive
operations of regulations affecting her status. P.
338 U. S.
544.
(h) The national emergency proclaimed May 27, 1941, has not been
terminated; a state of war still exists; and the Act of June 21,
1941, and the proclamations and regulations thereunder, are still
in force. Pp.
338 U. S.
545-546.
(i) A different result is not required by the War Brides Act,
which waives some of the usual requirements for the admission of
certain alien spouses only if they are "otherwise admissible under
the immigration laws." Pp.
338 U. S. 546-547.
173 F.2d 599 affirmed.
The District Court dismissed a writ of habeas corpus obtained to
test the right of the Attorney General to exclude from the United
States, without a hearing, the alien wife of a citizen who had
served honorably in the armed forces during World War II. The Court
of Appeals affirmed. 173 F.2d 599. This Court granted certiorari.
336 U.S. 966.
Affirmed, p.
338 U. S.
547.
Page 338 U. S. 539
MR. JUSTICE MINTON delivered the opinion of the Court.
May the United States exclude without hearing, solely upon a
finding by the Attorney General that her admission would be
prejudicial to the interests of the United States, the alien wife
of a citizen who had served honorably in the armed forces of the
United States during World War II? The District Court, for the
Southern District of New York held that it could, and the Court of
Appeals for the Second Circuit affirmed. 173 F.2d 599. We granted
certiorari to examine the question especially in the light of the
War Brides Act of December 28, 1945, 336 U.S. 966.
Petitioner was born in Germany in 1915. She left Germany and
went to Czechoslovakia during the Hitler regime. There, she was
married and divorced. She went to England in 1939 as a refugee.
Thereafter, she served with the Royal Air Force efficiently and
honorably from January 1, 1943, until May 30, 1946. She then
secured civilian employment with the War Department of the United
States in Germany. Her work was rated "very good" and "excellent."
On February 28, 1948, with the permission of the Commanding General
at Frankfurt, Germany, she married Kurt W. Knauff, a naturalized
citizen of the United States. He is an honorably discharged United
States Army veteran of World War II. He is, as he was at the time
of his marriage, a civilian employee of the United States Army at
Frankfurt, Germany.
On August 14, 1948, petitioner sought to enter the United States
to be naturalized. On that day, she was temporarily excluded from
the United States and detained at Ellis Island. On October 6, 1948,
the Assistant Commissioner of Immigration and Naturalization
recommended that she be permanently excluded without a hearing on
the ground that her admission would be
Page 338 U. S. 540
prejudicial to the interests of the United States. On the same
day, the Attorney General adopted this recommendation and entered a
final order of exclusion. To test the right of the Attorney General
to exclude her without a hearing for security reasons, habeas
corpus proceedings were instituted in the Southern District of New
York, based primarily on provisions of the War Brides Act. The
District Court dismissed the writ, and the Court of Appeals
affirmed.
The authority of the Attorney General to order the exclusion of
aliens without a hearing flows from the Act of June 21, 1941,
amending § 1 of the Act of May 22, 1918, 55 Stat. 252, 22 U.S.C. §
223. [
Footnote 1] By the 1941
amendment, it was provided that the President might, upon finding
that the interests of the United States required it, impose
additional restrictions and prohibitions on the entry into and
departure of persons from the United States during the national
emergency proclaimed May 27, 1941. Pursuant to this Act of
Congress, the President, on November 14, 1941, issued Proclamation
2523, 55 Stat. 1696, 3 CFR, 1943 Cum.Supp., 270-272. This
proclamation recited that the interests of the United States
required the imposition of additional restrictions upon the entry
into and
Page 338 U. S. 541
departure of persons from the country, and authorized the
promulgation of regulations jointly by the Secretary of State and
the Attorney General. It was also provided that no alien should be
permitted to enter the United States if it were found that such
entry would be prejudicial to the interest of the United States.
[
Footnote 2]
Pursuant to the authority of this proclamation, the Secretary of
State and the Attorney General issued regulations governing the
entry into and departure of persons from the United States during
the national emergency. Subparagraphs (a) to (k) of § 175.53 of
these regulations specified the classes of aliens whose entry into
the United States was deemed prejudicial to the public interest.
Subparagraph (b) of § 175.57 provided that the Attorney General
might deny an alien a hearing before a board of inquiry in special
cases where he determined that the alien was excludable under the
regulations on the basis of information of a confidential nature,
the disclosure of which would be prejudicial to the public
interest. [
Footnote 3]
Page 338 U. S. 542
It was under this regulation § 175.57(b) that petitioner was
excluded by the Attorney General and denied a hearing. We are asked
to pass upon the validity of this action.
At the outset, we wish to point out that an alien who seeks
admission to this country may not do so under any claim of right.
Admission of aliens to the United States is a privilege granted by
the sovereign United States Government. Such privilege is granted
to an alien only upon such terms as the United States shall
prescribe. It must be exercised in accordance with the procedure
which the United States provides.
Nishimura Ekiu v. United
States, 142 U. S. 651,
142 U. S. 659;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S.
711.
Petitioner contends that the 1941 Act and the regulations
thereunder are void to the extent that they contain
unconstitutional delegations of legislative power. But there is no
question of inappropriate delegation of legislative power involved
here. The exclusion of aliens is a fundamental act of sovereignty.
The right to do so stems not alone from legislative power, but is
inherent in the executive power to control the foreign affairs of
the nation.
United States v. Curtiss-Wright Export Corp.,
299 U. S. 304;
Fong Yue Ting v. United States, 149 U.
S. 698,
149 U. S. 713.
When Congress prescribes a procedure concerning the admissibility
of aliens, it is not dealing alone with a legislative power. It is
implementing an inherent executive power.
Page 338 U. S. 543
Thus, the decision to admit or to exclude an alien may be
lawfully placed with the President, who may, in turn, delegate the
carrying out of this function to a responsible executive officer of
the sovereign, such as the Attorney General. The action of the
executive officer under such authority is final and conclusive.
Whatever the rule may be concerning deportation of persons who have
gained entry into the United States, it is not within the province
of any court, unless expressly authorized by law, to review the
determination of the political branch of the Government to exclude
a given alien.
Nishimura Ekiu v. United States,
142 U. S. 651,
142 U. S.
659-660;
Fong Yue Ting v. United States,
149 U. S. 698,
149 U. S.
713-714;
Ludecke v. Watkins, 335 U.
S. 160.
Cf. Yamataya v. Fisher, 189 U. S.
86,
189 U. S. 101.
Normally, Congress supplies the conditions of the privilege of
entry into the United States. But, because the power of exclusion
of aliens is also inherent in the executive department of the
sovereign, Congress may in broad terms authorize the executive to
exercise the power,
e.g., as was done here, for the best
interests of the country during a time of national emergency.
Executive officers may be entrusted with the duty of specifying the
procedures for carrying out the congressional intent. What was said
in
Lichter v. United States, 334 U.
S. 742,
334 U. S. 785,
is equally appropriate here:
"It is not necessary that Congress supply administrative
officials with a specific formula for their guidance in a field
where flexibility and the adaptation of the congressional policy to
infinitely variable conditions constitute the essence of the
program. . . . Standards prescribed by Congress are to be read in
the light of the conditions to which they are to be applied. 'They
derive much meaningful content from the purpose of the Act, its
factual background and the statutory context in which they appear.'
"
Page 338 U. S. 544
Whatever the procedure authorized by Congress is, it is due
process as far as an alien denied entry is concerned.
Nishimura
Ekiu v. United States, supra; Ludecke v. Watkins, supra.
In the particular circumstances of the instant case, the
Attorney General, exercising the discretion entrusted to him by
Congress and the President, concluded upon the basis of
confidential information that the public interest required that
petitioner be denied the privilege of entry into the United States.
He denied her a hearing on the matter because, is his judgment, the
disclosure of the information on which he based that opinion would
itself endanger the public security.
We find no substantial merit to petitioner's contention that the
regulations were not "reasonable," as they were required to be by
the 1941 Act. We think them reasonable in the circumstances of the
period for which they were authorized, namely, the national
emergency of World War II. Nor can we agree with petitioner's
assertion that Proclamation 2523,
see note 2 supra, authorized only the
Secretary of State, and not the Attorney General, to order the
exclusion of aliens.
See Presidential Proclamation 2850 of
August 17, 1949, 14 Fed.Reg. 5173, amending and clarifying
Proclamation 2523. We reiterate that we are dealing here with a
matter of privilege. Petitioner had no vested right of entry which
could be the subject of a prohibition against retroactive operation
of regulations affecting her status.
It is not disputed that the Attorney General's action was
pursuant to the 8 CFR regulations heretofore discussed. [
Footnote 4] However, 22 U.S.C. §§ 223
[
Footnote 5] authorizes these
special restrictions on the entry of aliens only when the United
States is at war or during the existence of the
Page 338 U. S. 545
national emergency proclaimed May 27, 1941, No. 2487. [
Footnote 6] For ordinary times,
Congress has provided aliens with a hearing. 8 U.S.C. §§ 152, 153.
And the contention of petitioner is that she is entitled to the
statutory hearing because, for purposes of the War Brides Act,
within which she comes, the war terminated when the President
proclaimed the cessation of hostilities. [
Footnote 7] She contends that the War Brides Act,
applicable portions of which are set out in the margin, [
Footnote 8] discloses a congressional
intent that special restrictions on the entry of aliens should
cease to apply to war brides upon the cessation of hostilities.
The War Brides Act provides that World War II is the period from
December 7, 1941, until the proclaimed termination of hostilities.
This has nothing to do with the period for which the regulations
here acted under were
Page 338 U. S. 546
authorized. The beginning and end of the war are defined by the
War Brides Act, we assume, for the purpose of ascertaining the
period within which citizens must have served in the armed forces
in order for their spouses and children to be entitled to the
benefits of the Act. The special procedure followed in this case
was authorized not only during the period of actual hostilities,
but during the entire war and the national emergency proclaimed May
27, 1941. The national emergency has never been terminated. Indeed,
a state of war still exists.
See Woods v. Cloyd W. Miller
Co., 333 U. S. 138, n.
3. Thus, the authority upon which the Attorney General acted
remains in force. The Act of June 21, 1941, and the President's
proclamations and the regulations thereunder, are still a part of
the immigration laws.
The War Brides Act does not relieve petitioner of her alien
status. Indeed, she sought admission in order to be naturalized,
and thus to overcome her alien status. The Act relieved her of
certain physical, mental, and documentary requirements, and of the
quota provisions of the immigration laws. But she must, as the Act
requires, still be "otherwise admissible under the immigration
laws." In other words, aside from the enumerated relaxations of the
immigration laws she must be treated as any other alien seeking
admission. Under the immigration laws and regulations applicable to
all aliens seeking entry into the United States during the national
emergency, she was excluded by the Attorney General without a
hearing. In such a case, we have no authority to retry the
determination of the Attorney General.
Ludecke v. Watkins,
335 U. S. 160,
335 U. S.
171-172.
There is nothing in the War Brides Act or its legislative
history [
Footnote 9] to
indicate that it was the purpose of Congress,
Page 338 U. S. 547
by partially suspending compliance with certain requirements and
the quota provisions of the immigration laws, to relax the security
provisions of the immigration laws. There is no indication that
Congress intended to permit members or former members of the armed
forces to marry and bring into the United States aliens who the
President, acting through the Attorney General in the performance
of his sworn duty, found should be denied entry for security
reasons. As all other aliens, petitioner had to stand the test of
security. This she failed to meet. We find no legal defect in the
manner of petitioner's exclusion, and the judgment is
Affirmed.
MR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the
consideration or decision of this case.
[
Footnote 1]
"When the United States is at war or during the existence of the
national emergency proclaimed by the President on May 27, 1941, or
as to aliens whenever there exists a state of war between, or
among, two or more states, and the President shall find that the
interests of the United States require that restrictions and
prohibitions in addition to those provided otherwise than by this
Act be imposed upon the departure of persons from and their entry
into the United States, and shall make public proclamation thereof,
it shall, until otherwise ordered by the President or Congress, be
unlawful --"
"(a) For any alien to depart from or enter or attempt to depart
from or enter the United States except under such reasonable rules,
regulations, and orders, and subject to such limitations and
exceptions as the President shall prescribe. . . ."
[
Footnote 2]
"(3) After the effective date of the rules and regulations
hereinafter authorized, no alien shall enter or attempt to enter
the United States unless he is in possession of a valid unexpired
permit to enter issued by the Secretary of State, or by an
appropriate officer designated by the Secretary of State, or is
exempted from obtaining a permit to enter in accordance with the
rules and regulations which the Secretary of State, with the
concurrence of the Attorney General, is hereby authorized to
prescribe in execution of these rules, regulations, and
orders."
"No alien shall be permitted to enter the United States if it
appears to the satisfaction of the Secretary of State that such
entry would be prejudicial to the interests of the United States as
provided in the rules and regulations hereinbefore authorized to be
prescribed by the Secretary of State, with the concurrence of the
Attorney General."
3 CFR, 1943 Cum.Supp., 271.
[
Footnote 3]
"In the case of an alien temporarily excluded by an official of
the Department of Justice on the ground that he is, or may be
excludable under one or more of the categories set forth in §
175.53, no hearing by a board of special inquiry shall be held
until after the case is reported to the Attorney General and such a
hearing is directed by the Attorney General or his representative.
In any special case, the alien may be denied a hearing before a
board of special inquiry and an appeal from the decision of that
board if the Attorney General determines that he is excludable
under one of the categories set forth in § 175.53 on the basis of
information of a confidential nature, the disclosure of which would
be prejudicial to the public interest."
8 CFR, 1945 Supp., § 175.57(b).
[
Footnote 4]
See note 3
supra.
[
Footnote 5]
See note 1
supra.
[
Footnote 6]
And at certain other times not material here.
[
Footnote 7]
Proclamation 2714 of December 31, 1946, 1946 Supp., 77.
[
Footnote 8]
"That, notwithstanding any of the several clauses of section 3
of the Act of February 5, 1917, excluding physically and mentally
defective aliens, and notwithstanding the documentary requirements
of any of the immigration laws or regulations, Executive orders, or
Presidential proclamations issued thereunder, alien spouses or
alien children of United States citizens serving in, or having an
honorable discharge certificate from the armed forces of the United
States during the Second World War shall, if otherwise admissible
under the immigration laws and if application for admission is made
within three years of the effective date of this Act, be admitted
to the United States. . . ."
"SEC. 2. Regardless of section 9 of the Immigration Act of 1924,
any alien admitted under section 1 of this Act shall be deemed to
be a nonquota immigrant as defined in section 4(a) of the
Immigration Act of 1924."
"
* * * *"
"SEC. 5. For the purpose of this Act, the Second World War shall
be deemed to have commenced on December 7, 1941, and to have ceased
upon the termination of hostilities as declared by the President or
by a joint resolution of Congress."
59 Stat. 659, 8 U.S.C. §§ 232-236.
[
Footnote 9]
See H.R.Rep. No. 1320, 79th Cong., 1st Sess. (1945); S.Rep. No.
860, 79th Cong., 1st Sess. (1945); 91 Cong.Rec. 11738, 12342
(1945).
MR. JUSTICE FRANKFURTER, dissenting.
If the essence of statutory construction is to find the thought
beneath the words, the views expressed by MR. JUSTICE JACKSON, in
which I fully concur, enforce the purpose of Congress. The contrary
conclusion substantially frustrates it.
Seventy years ago began the policy of excluding mentally
defective aliens from admission into the United States. Thirty
years ago, it became our settled policy to admit even the most
desirable aliens only in accordance with the quota system. By the
so-called War Brides Act, Congress made inroads upon both these
deeply rooted policies. Act of December 28, 1945, 59 Stat. 659, 8
U.S.C. § 232
et seq. It lifted the bar against the
exclusion even of "physically and mentally defective aliens." It
did this in favor of
"alien spouses and alien minor children of citizen members who
are serving or have served honorably in the armed forces of the
United States during World War II."
H.R.Rep. No.1320 and S.Rep. No.860, 79th Cong., 1st Sess.
(1945).
Page 338 U. S. 548
This was a bounty afforded by Congress not to the alien who had
become the wife of an American, but to the citizen who had
honorably served his country. Congress gave this bounty even though
a physically or mentally defective person might thereby be added to
the population of the United States. Yet it is suggested that the
deepest tie that an American soldier could form may be secretly
severed on the mere say-so of an official, however well
intentioned. Although five minutes of cross-examination could
enable the soldier-husband to dissipate seemingly convincing
information affecting the security danger of his wife, that
opportunity need not be accorded. And all this because of the
literal reading of the provision of the War Brides Act that the
alien spouse, though physically and mentally defective, is to be
allowed to join her citizen husband "if otherwise admissible under
the immigration laws." Upon that phrase is rested the whole
structure of Executive regulation based on § 1 of the Act of May
22, 1918, 40 Stat. 559, as amended by the Act of June 21, 1941, 55
Stat. 252, 22 U.S.C. § 223, regarding the summary exclusion,
without opportunity for a hearing, of an alien whose entry the
Attorney General finds inimical to the public interest.
*
This is not the way to read such legislation. It is true also of
Acts of Congress that "The letter Killeth." Legislation should not
be read in such a decimating spirit unless the letter of Congress
is inexorable. We are reminded from time to time that, in enacting
legislation, Congress is not engaged in a scientific process which
takes account of every contingency. Its laws are not to be read as
though every "i" has to be dotted and every "t"
Page 338 U. S. 549
crossed. The War Brides Act is legislation derived from the
dominant regard which American society places upon the family. It
is not to be assumed that Congress gave with a bountiful hand, but
allowed its bounty arbitrarily to be taken away. In framing and
passing the War Brides Act, Congress was preoccupied with opening
the door to wives acquired by American husbands during service in
foreign lands. It opened the door on essentials -- wives of
American soldiers and perchance mothers of their children were not
to run the gauntlet of administrative discretion in determining
their physical and mental condition, and were to be deemed nonquota
immigrants. Congress ought not to be made to appear to require that
they incur the greater hazards of an informer's tale without any
opportunity for its refutation, especially since considerations of
national security, insofar as they are pertinent, can be amply
protected by a hearing
in camera. Compare Rule 46
of the Rules of Practice for Admiralty Courts during World War II,
316 U.S. 717,
and see Haydock, Some Evidentiary Problems
Posed by Atomic Energy Security Requirements, 61 Harv.L.Rev. 468,
482-83 (1948). An alien's opportunity of entry into the United
States is, of course, a privilege which Congress may grant or
withhold. But the crux of the problem before us is whether
Congress, having extended the privilege for the benefit not of the
alien, but of her American husband, left wide open the opportunity
ruthlessly to take away what it gave.
A regulation permitting such exclusion by the Attorney General's
fiat -- in the nature of things, that high functionary must largely
act on dossiers prepared by others -- in the case of an alien
claiming entry on his own account is one thing. To construe such
regulation to be authorized and to apply in the case of the wife of
an honorably
Page 338 U. S. 550
discharged American soldier is quite another thing. Had Congress
spoken explicitly, we would have to bow to it. Such a substantial
contradiction of the congressional beneficence which is at the
heart of the War Brides Act ought not to be attributed to Congress
by a process of elaborate implication. Especially is this to be
avoided when to do so charges Congress with an obviously harsh
purpose. Due regard for the whole body of immigration laws and
policies makes it singularly appropriate in construing the War
Brides Act to be heedful of the admonition that "The letter
killeth."
* The Attorney General is to act on information that satisfies
him, but not only is there no opportunity for a hearing, but the
Attorney General can lock in his own bosom the evidence that does
satisfy him. 8 C.F.R. §§ 175.53, 175.57 (1949).
MR. JUSTICE JACKSON, whom MR. JUSTICE BLACK and MR. JUSTICE
FRANKFURTER join, dissenting.
I do not question the constitutional power of Congress to
authorize immigration authorities to turn back from our gates any
alien or class of aliens. But I do not find that Congress has
authorized an abrupt and brutal exclusion of the wife of an
American citizen without a hearing.
Congress held out a promise of liberalized admission to alien
brides, taken unto themselves by men serving in or honorably
discharged from our armed services abroad, as the Act, set forth in
the Court's opinion, indicates. The petitioning husband is
honorably discharged, and remained in Germany as a civilian
employee. Our military authorities abroad required their permission
before marriage. The Army in Germany is not without a vigilant and
security-conscious intelligence service. This woman was employed by
our European Command, and her record is not only without blemish,
but is highly praised by her superiors. The marriage of this alien
woman to this veteran was approved by the Commanding General at
Frankfurt-on-Main.
Now this American citizen is told he cannot bring his wife to
the United States, but he will not be told why.
Page 338 U. S. 551
He must abandon his bride to live in his own country or forsake
his country to live with his bride.
So he went to court and sought a writ of habeas corpus, which we
never tire of citing to Europe as the unanswerable evidence that
our free country permits no arbitrary official detention. And the
Government tells the Court that not even a court can find out why
the girl is excluded. But it says we must find that Congress
authorized this treatment of war brides, and, even if we cannot get
any reasons for it, we must say it is legal; security requires
it.
Security is like liberty, in that many are the crimes committed
in its name. The menace to the security of this country, be it
great as it may, from this girl's admission is as nothing compared
to the menace to free institutions inherent in procedures of this
pattern. In the name of security, the police state justifies its
arbitrary oppressions on evidence that is secret, because security
might be prejudiced if it were brought to light in hearings. The
plea that evidence of guilt must be secret is abhorrent to free
men, because it provides a cloak for the malevolent, the
misinformed, the meddlesome, and the corrupt to play the role of
informer undetected and uncorrected.
Cf. In re Oliver,
333 U. S. 257,
333 U. S.
268.
I am sure the officials here have acted from a sense of duty,
with full belief in their lawful power, and no doubt upon
information which, if it stood the test of trial, would justify the
order of exclusion. But not even they know whether it would stand
this test. And anyway, as I have said before, personal confidence
in the officials involved does not excuse a judge for sanctioning a
procedure that is dangerously wrong in principle. Dissent in
Bowles v. United States, 319 U. S. 33,
319 U. S.
37.
Congress will have to use more explicit language than any yet
cited before I will agree that it has authorized an administrative
officer to break up the family of an
Page 338 U. S. 552
American citizen or force him to keep his wife by becoming an
exile. Likewise, it will have to be much more explicit before I can
agree that it authorized a finding of serious misconduct against
the wife of an American citizen without notice of charges, evidence
of guilt and a chance to meet it.
I should direct the Attorney General either to produce his
evidence justifying exclusion or to admit Mrs. Knauff to the
country.